Hearing could result in mistrial for John Lee

If prosecutors Karen Fraivillig and Andrea McHugh take the stand later this summer, they will seek to undermine the credibility of one of their own witnesses to fight the allegations of misconduct

By SHANNON McFARLAND

In yet another twist to an already unusual legal tussle that involves charges and counter-charges, attorneys on both sides of a double murder trial may be compelled to take the witness stand to explain their actions.

And if prosecutors Karen Fraivillig and Andrea McHugh do take the stand later this summer as expected, they will seek to undermine the credibility of one of their own witnesses to fight the allegations of misconduct being lodged against them.

The dispute surrounds the March trial of Venice resident John Allen Lee, 49, who was convicted of killing his girlfriend and a neighbor in 2011. On Monday, Lee’s attorney, Assistant Public Defender Carolyn Schlemmer, filed a motion asking for a new trial, alleging that a 64-year-old witness was jailed in an effort to threaten and coerce her into giving testimony favorable to the state.

Circuit Judge Peter Dubensky said Tuesday that he expects Fraivillig and McHugh to take the witness stand at a hearing that could lead to a mistrial if the judge determines that their actions had an undue impact on the trial.

“We are eager to testify,” Fraivillig said.

Schlemmer said she may also take the stand, withdrawing from representing Lee to testify on his behalf.

Dorothy “Dotty” Stolte was strip-searched and held in jail for five days during the trial in March. Prosecutors said they needed to jail her to ensure she would testify regarding a pocketknife kit she had bought Lee for Christmas two years before.

Schlemmer’s motion accused Fraivillig of threatening and coercing Stolte to testify that a knife she bought Lee is the same knife found in a storm drain near the Venice home where the bodies of Traci Nabergall and Jason Salter were found in January 2011.

Part of the coercion involved jailing Stolte, Schlemmer claimed.

In her response to the motion, Fraivillig said she had to jail Stolte because she threatened not to testify in the trial.

"I am not talking to Karen or coming to court because Karen is a liar," Stolte reportedly told Fraivillig’s assistant before the trial.

Fraivillig also dismissed Stolt’s accusation that she had coached her on how to testify and threatened to jail her again if she didn’t comply as “baseless allegations by an antagonistic witness.”

Recorded jail calls Stolte made support their reasons for jailing the 64-year-old woman, Fraivillig said in court Tuesday.

Generally, witnesses who are a flight risk, fear retribution, live far away or have difficulty traveling may be jailed on administrative hold or given assistance to attend the trial.

But Stolte said jail staff even removed her false teeth and refused her necessary medications, leaving her weak and fearful of prosecutors’ demands for her testimony.

Stolte’s testimony was critical for prosecutors to connect Lee with the recovered knife, which had no traces of DNA or fingerprints.

In her motion for a new trial, Schlemmer said that prosecutors misled Dubensky by telling the judge that Stolte previously testified that she purchased the murder weapon. Multiple statements show that Stolte maintained that she bought him a kit with “a small pen knife,” but it did not match the larger knife found in a storm drain.

Schlemmer said another witness, a relative of Lee, has also alleged prosecutors threatened him, but he had a stroke and is unable to testify.

Based on the allegations, Dubensky canceled Lee’s sentencing hearing that had been scheduled for Tuesday, when he was expected to heed the jury’s recommendation and sentence Lee to death.

“I will not address the motion for a new trial or the state’s response,” Dubensky told attorneys Tuesday. He asked the prosecution and defense to compare schedules; the hearing on the motion and new evidence has not been scheduled yet.

This is not the first time Schlemmer and Fraivillig have clashed.

Fraivillig has been accused of misconduct in at least two other murder cases, including Shawn Tyson’s trial last year for killing two British tourists. A judge found concerning improper disclosure by Fraivillig in the Tyson case, but ruled it did not warrant a new trial as Schlemmer asked.

Schlemmer told the judge Fraivillig has a “pattern” of misconduct, repeatedly failing to disclose evidence to the defense.

Fraivillig dismissed the claims as “character assassination,” insisting they have always been found to be insubstantial.